Jersey Unreported Judgments

[2005]JCA119

 

 

 

IN THE COURT OF APPEAL

 

18^th July, 2005.

 

 

 

 

judgment

 

 

Court File No 89/15

 

 

 

 

 

Court File No 91/74

 

 

Court File No 91/184

 

 

Court File No 93/317

 

 

Court File No 95/182

 

 

Court File No 95/195

 

 

Court File No 96/85

 

 

Applications by Mr James Barker under Rule 3 of the Court of Appeal (Civil Rules 1964) for an enlargement of time within which to lodge a Notice of Appeal against the Order of the Royal Court of 18th March 2004 dismissing an Appeal from an Order of the Master of the Royal Court of 30th April 2003 striking out the above captioned actions.

 

Mr James Barker in person and on behalf of St Aubin's Wine Bar

 

Advocate J Hawgood for Jurats Vint and Myles, the Viscount, P de Gruchy, The States of Jersey Housing Committee and the Solicitor General

 

Advocate F J Benest on his own behalf

 

Advocate A P Begg on his own behalf

 

Advocate M C Goulborn for Advocate M L Sinel, Advocate M C St J Birt and Advocate M S D Yates

 

Advocate M St J O'Connell for Barclays Bank and Ann Street Brewery Co Ltd

 

 

judgment

THE bailiff:

Introduction

 

1.        James Barker ("Mr Barker") is the plaintiff in a number of actions, and is the representative of St Aubin's Wine Bar Ltd which is the plaintiff in another action.  All these actions were struck out by the Master on 30^th April 2003.  He sought leave to appeal out of time against that order, and that application was dismissed by the Royal Court on 18^th March 2004, at which time Mr Barker was ordered to pay the costs of the various defendants on an indemnity basis. Leave to appeal to the Court of Appeal was refused.

2.        On 19^th March 2004 Mr Barker wrote to the Assistant Judicial Greffier stating that he wished to appeal against the judgment of the Royal Court.  He was advised to await the publication of the reasoned judgment, which was sent to him on 25^th March 2004.  Mr Barker telephoned the Judicial Greffe on Tuesday, 20^th April 2004 asking for a meeting which was arranged for the following week.  In advance of that meeting, on the 21^st April 2004, the Assistant Judicial Greffier sent Mr Barker a long letter setting out clearly but succinctly what he needed to do if he wished to pursue an appeal.  The letter specifically pointed out the time limit for appealing which had by then expired.  The Assistant Judicial Greffier wrote -

"There is one more procedural point that I should mention, regarding time limits for appealing:

Rule 3 of the Court of Appeal (Civil) Jersey) Rules, 1964, provides -

"Every notice of appeal shall be served within one month from the date on which the judgment or order of the court below is pronounced." [emphasis added].

From this, it follows that you are now out of time for serving the notice of appeal and, at this stage, therefore, need technically to apply to the Single Judge, under Rule 16 of the Court of Appeal (Civil) Jersey) Rules, 1964, for an enlargement of the time prescribed by Rule 3 of the said Rules, for serving the notice of appeal.  I say 'technically' and 'at this stage' as, if your application for leave to appeal to the Single Judge is granted, there will be no need to apply for an enlargement of time, as Rule 16 (2) provides as follows: "where leave to appeal is required and is granted, the time for serving a notice of appeal shall be automatically extended by seven days from the date of the grant of leave to appeal.""

3.        So far as the Judicial Greffe was concerned, nothing further was heard from Mr Barker until February 2005 when he called to speak to the Assistant Judicial Greffier.  Following that meeting the Assistant Judicial Greffier wrote, on the 17^th February 2005, giving certain procedural advice.  On the 18^th March Mr Barker attended at the Judicial Greffe again, following which a letter was sent to him giving more detailed advice.  In particular he was strongly advised (1) to prepare the necessary papers for his application before a Single Judge of the Court of Appeal and (2) to obtain legal representation.  The Assistant Judicial Greffier went so far as to write to the Acting Bâtonnier on Mr Barker's behalf, but Mr Barker did not follow that up by making the necessary application for legal aid.

4.        On the 8^th April 2005 all the defendants, or their counsel, attended with Mr Barker before the Bailiff's Judicial Secretary and the hearing of the application was fixed for 18^th August. 

Application for Adjournment

 

5.        During the last week of July Mr Barker attended upon the Assistant Judicial Greffier to inform her that he had been ill and would like to have the hearing of his application adjourned.  He produced a number of letters in support of his wish to adjourn.  Mrs Lorna Forster, Senior Physiotherapist in the Health & Social Services Department wrote on the 25^th July -

"Mr James Barker of Seagull House, St Aubin is at present attending cardiac rehabilitation classes after his myocardial infarct.  These classes are on Monday, Wednesday and Fridays at the Jersey General Hospital.  He needs to continue these classes for another few weeks."

6.        Doctor Michael Overton wrote on the 26^th July -

"This is to confirm that Mr Barker has been to see me and will be returning for regular review."

7.        Finally Doctor James Dwyer wrote on the 26^th July -

"I have advised my patient, Mr James Barker of Seagull House, St Aubin, whom I have treated for some twenty years, to take a complete rest from stressful and potentially stressful activity for a full six months following a recent cardiac incident.  I understand that non-urgent judicial matters can be postponed where undue stress might lead to a fatal outcome."

8.        These letters were referred to me and, at my direction, the Bailiff's Judicial Secretary wrote to Mr Barker advising him that he would have to make his application for an adjournment in open court.  If he was unable to attend, he was advised that he would need to ensure that a medical practitioner was in court on the 18^th August to explain his condition.

9.        No medical practitioner did attend in court, but Mr Barker was present and renewed his application for an adjournment in person.  He relied upon two grounds. First he declared that he was unfit, and he drew my attention in particular to the letter from Doctor Dwyer. Secondly, he wished to obtain legal representation.  The application for an adjournment was opposed by all the defendants. 

10.      I refused the application for an adjournment of the hearing for five reasons.

(i)        Mr Barker accepted that he had not followed the advice of the Bailiff's Judicial Secretary and procured the attendance of a medical practitioner in court.  Indeed he had specifically told Doctor Dwyer that it was not necessary for him to attend.

(ii)       From my own observations in court Mr Barker appeared to be in sufficiently good health to present his application.  Indeed, by chance, on the occasion of the Visite Royale in St Mary on 17^th August, I saw Mr Barker riding his bicycle past the cavalcade of official cars at a significant pace.  I was glad to see that Mr Barker gave every impression of being in robust good health.

(iii)      So far as legal representation was concerned, Mr Barker had ignored advice from the Judicial Greffe and had taken no steps to seek legal advice from an advocate.  He told me that he had taken legal advice elsewhere, but he was not willing to disclose from whom.

(iv)      Mr Barker is an experienced litigant, and indeed an experienced litigant in person.  I was satisfied that the absence of an advocate would not prevent Mr Barker from putting to me any point which he wished to make in a competent manner.

(v)       The interests of the defendants cannot be disregarded.  The defendants have all complied with the rules and practice directions, and filed their submissions in advance of the hearing.  They have incurred expense in preparing for the hearing.

In summary I concluded that it was not in the interests of justice to grant Mr Barker's application for an adjournment, and it was accordingly refused.

The Application for an Extension of Time

11.      Mr Barker accepted that he was significantly out of time in seeking leave to appeal against the judgment of the Royal Court.  The judgment was delivered by Commissioner Hamon on the 18^th March 2004.  As noted above, by Rule 3 of the Court of Appeal (Civil) Rules 1964 "every notice of appeal shall be served within one month from the date on which the judgment or order of the court below was pronounced".  A notice should therefore have been filed no later than 17^th April 2004.  In fact it was not filed until the 8^th April 2005.  No request for an extension of time for appealing has been made in writing, nor has any affidavit in support of the application been filed to explain the long delay in filing the notice of appeal.  Indeed Mr Barker appeared before me without any papers in exactly the same way as he had first appeared before the Royal Court.  He did so not withstanding the clear advice from the Assistant Judicial Greffier in her letter of 18^th March 2005.  The Assistant Judicial Greffier wrote -

"As I explained I have read the judgment of March 2004 and am aware of the difficulties that arose in the Royal Court when proceedings had to be adjourned as you appeared without papers.  We must ensure that this situation does not happen again and to this end I have enclosed a copy of the Consolidated Court of Appeal Practice Direction with the relevant sections, 4(9) and 4(11) highlighted.  These set out exactly which documents are required by the Court and how they should be indexed.  In addition to the Court copies you will also need a copy for yourself and copies for each of the respondents."

12.      Conscious nonetheless that Mr Barker was a litigant in person, I invited him to consider whether he wished to give evidence in order to explain the reasons for the delay in filing the notice of appeal.  He elected to do so, and was questioned by me in an attempt to elicit anything of assistance to his application.  He was also cross-examined by counsel for the defendants.

13.      Even making every allowance for the difficulties of hearing suffered by Mr Barker, his evidence was not of great assistance.  Indeed I was close to the conclusion that he was being deliberately obstructive in responding to questions from counsel.  The principal reason given by Mr Barker was that he had been ill, but he conceded that he had not been ill before May 2005. 

14.      In making his submissions as to why leave to appeal should be granted, Mr Barker stated that he had a case and that it would be unjust not to hear it.  He had arguments which would "blow everything out of the water".  He stated that he had discussed the judgment of the Royal Court with his barrister but he could not disclose what criticism of the judgment had been made.  Mr Barker contended that he had not received any of the bundles prepared by counsel for the defendants.  He suggested that he was not living at Seagull House in St Brelade, yet that was his address for service on the court file.

The Law

15.      The general principle to be applied in considering whether or not to grant an application for leave to appeal was set out by this court in Glazebrook -v- Housing Committee [2002] JRC 217.  The reported note of that decision at 2002 JLR Note 43 records that -

"(c) Leave to appeal will be granted when (i) there is a clear case of something having gone wrong, without it being necessary for the applicant to demonstrate a "prima facie case that an error has been made" (Vekaplast K G -v- Picot (T.A.) (C.I.) Ltd., 1989 JLR 269, dicta of Tomes, Deputy Bailiff not followed); (ii) a question of general principle is decided for the first time (Ex p. Gilchrist, In re Armstrong (1886), 17 Q.B.D. 521, dicta of Lord Esher, M.R. followed); and (iii) there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage (Buckle -v-Holmes, [1926] 2 K.B. 125, followed)."

Conclusion

16.      I am entirely satisfied that every effort was made by the defendants to deliver their bundles to Mr Barker.  I was told that the bundle prepared by Mr Goulborn in support of his clients' case was left on the doorstep of Seagull House on 15^th August.  Mr Hawgood, for the Solicitor General and others, told me that he had made strenuous efforts to deliver his bundle.  On the 5^th August one of his staff telephoned Mr Barker's number at Seagull House and spoke to a man telling him that the bundle was available for collection.  He was informed by that man that the message would be passed on to Mr Barker.  By Thursday, 11^th August the bundle had not been collected, and a decision was taken to deliver it by courier.  The courier rang the doorbell at Seagull House and then telephoned Mr Barker's number.  There was no reply, but shortly after a man claiming to be a doctor telephoned the courier's mobile telephone and said that Mr Barker would be in contact with Mr Hawgood's office. No such contact was made.  Mr Begg told me that his bundle had been delivered to Mr Barker, albeit rather late.  If Mr Barker has not received the defendants' bundles he has only himself to blame.  Mr Barker has of course prepared no papers of any description.

17.      I have strained to ascertain whether there are any arguments which might be developed by Mr Barker and which might justify the granting of leave to appeal on the test set out above, not withstanding the long and unexplained delay in filing the notice of appeal.  I have had no hesitation in concluding, for all the reason set out by Commissioner Hamon in the judgment of the Royal Court, that the appeal against the striking out of all these actions is hopeless and without any merit.  Indeed Mr Barker's position is now even weaker than it was in March 2004.  He was out of time when he sought leave to appeal to the Royal Court against the decision of the Master.  He was over a year out of time in filing his notice of appeal against the decision of the Royal Court.  The application for an enlargement of time within which to file the notice of appeal is refused, as is the application for leave to appeal.  I am prepared to hear the parties on the question of costs.

Authorities

Glazebrook -v- Housing Committee [2002] JRC 217.